Another Attorney for Life

By Michael Mello

As the number of condemned prisoners in the United States grows, so does the problem of finding competent attorneys to handle death penalty cases when the execution date draws near (Mello, 1988). In this essay, I would like to reflect on the motivations, rewards, and frustrations connected with this type of work, based on my five years of defending those who live under a sentence of death in Florida.

“Why do you represent people who are sentenced to death? Isn’t it depressing?” I have been asked such questions so often, by so many different people with different degrees of seriousness, that I have tried to find some pat answers, or at least one pat answer suitable for wineglass repartee. My attempts have been unsuccessful. This is not because I am ashamed of what I do or because I am unwilling to debate the merits of the death penalty. It is because I have been unable to find a way to express succinctly the intensity, the emotional highs and lows, of working for people who are litigating for their lives. I lack the words to describe how rewarding, as well as how frightening and stressful, this work can be.

This essay presents the same problem. I spend most of my working days (and a few nights) writing legal briefs, petitions, and memoranda in capital cases Yet this reflective essay is the most difficult death penalty writing assignment I have ever undertaken. I wonder if questions of motives would be so difficult were I a construction worker, a secretary, or a nuclear physicist. Jobs can have several different rewards, including money, prestige, education, and variety. Such reasons have only limited relevance in explaining why attorneys would ever want to handle death penalty cases.

Yet there are few other paying jobs that would permit me to spend all of my working time and energy fighting the system of government-sponsored homicide. I believe this system is an unambiguous disgrace to civilized humanity. My cases involve not so much debates about the wisdom of the death penalty in theory its— abstract morality or immorality—but rather case-by-case technical attacks upon a legal system that elects which citizens have lost their entitlement to live. As Charles Black demonstrated more than a decade ago in Capital Punishment: The Inevitability of Caprice and Mistake (2nd ed., 1981), the probability of mistake and the omnipresence of arbitrariness in the imposition of the death penalty pervade this system. My experience supports Black’s thesis that the death penalty can never be administered in a fair and evenhanded way. A clear sense of the system’s basic unfairness is an important motivating factor for my work.

A second motivation is the belief that effective advocacy can reveal latent injustices and therefore force the system to work as it should, even in the most apparently hopeless and seemingly clear-cut cases. For example, Theodore Bundy, infamous as Tallahassee’s Chi Omega killer, has been consistently portrayed by the national media as the essence of evil itself. Death penalty supporters cite Bundy as the ultimate justification for the death penalty. I have heard some people who generally oppose capital punishment say that they would make an exception for Theodore Bundy. Such death penalty opponents take care to distance themselves from Bundy’s case, carefully pointing out that most capital cases are not nearly so heinous.

Yet Bundy’s present attorneys, who are representing him without fee, have pieced together a picture of the case quite different from the media’s portrayal of the former law student turned mass murderer. Bundy has never been charged with, much less convicted of, most of the crimes attributed to him. He has been convicted of, and sentenced to death for, two crimes. He might well be innocent of at least one; the prosecution’s case at trial depended on hypnotically-created and unreliable testimony. Concerning the other crime, the sentencing jury (culled of all death penalty opponents and drawn from a community that had been saturated for months with prejudicial pretrial publicity) initially split six to six on whether Bundy should receive the death penalty. The jury had never been told that a tie vote on penalty was permissible (and would be treated as a recommendation of life imprisonment), so they continued to deliberate. One juror finally switched sides, making the vote seven to five for death. In both cases, the state had been willing to accept pleas of guilty in exchange for sentences of life imprisonment, but Bundy refused to plea-bargain. There is a good argument that his decision was itself the product of mental illness and incapacity.

Post-trial investigation almost always discloses important factual information not discovered by trial attorneys, who often work with extremely limited resources (Goodpaster, 1983.) Sometimes new evidence of innocence is found (Bedau and Radelet, 1987). Sometimes the crime may be explained, at least in part, by factors beyond the inmate’s control, such as mental illness or a childhood of extreme abuse or neglect. Sometimes evidence of a defendant’s positive qualities is found, making it less simple to reduce him or her to a subhuman object who has no right to live.

A major problem I regularly encounter is that the courts may be unwilling to revisit the case in light of such newly discovered evidence. However discouraging it may be when courts reject such legal claims, the litigation is still making a record for the future. Taken as a whole, these cases form a historical record of whom the state is killing and under what circumstances. The cases document that the “modern” death penalty is just as unfair as ever, that the new procedures are merely cosmetic, and that fundamental flaws in the system still exist (Amnesty International, 1987).)I sometimes take the view that I am litigating for the historians, the sociologists, and the anthropologists, in addition to litigating for the courts.

Questions about my motives are most difficult to answer when they come from someone I represent. Our relationship will be greatly influenced by how far along in the legal process the inmate’s case is when we first meet. All have already been sentenced to death. At the early stages, when we can expect that the execution will not happen for several years—if it happens at all—our relationship evolves at its own speed. It is, of course, impossible to generalize, as every case is unique. Sometimes we become close; in other cases we do not. Some inmates are intensely interested in every legal development; others want to know, but they want the attorney to bring the subject up and pursue it; still others want to talk only about their families, their lives on death row, or the state of the world in general. Many inmates are mentally ill in one form or another, ranging from gentle neurosis to flamboyant psychoses, severe retardation, and neurological impairment (Lewis et. al., 1986.) Early in the legal process, the death penalty does not eclipse all else, although it provides the subtext for much of our conversation. We can be expansive and talk about a wide range of subjects, including my reasons for being there.

In most cases, however, the client and I have not had the luxury of getting to know each other through a slowly developing relationship. The scarcity of death row attorneys in Florida and the frequency with which execution dates have been scheduled by its governors have meant that I often meet the inmate for the first time when the execution date has been set for the forthcoming month. I must get to know the inmate fast and gain his trust so that he will rely on my judgment and, more importantly, share information with my colleagues and me. The first step in most post-conviction efforts is to compile a complete life history of the inmate. Often the information needed is of the most intimate sort and may require the inmate to confront and share painful feelings and long-buried memories. The urgency of an impending execution date means that the legal team must develop, and sometimes force, trust and closeness at an accelerated pace.

The cases that are most difficult are those in which the inmate is running out of legal possibilities for relief. Such cases have been through the entire legal process in both state and federal courts at least once, and are therefore called “successors.” When an execution date is set in a case requiring successive litigation, both the inmate and the lawyer know that the chances of obtaining a stay of the execution are slim. We must strike a balance between ephemeral hope and hard reality.

The improbability of securing a stay of execution, which is linked to the increasing hostility of the courts to successors, presents lawyers with intractable dilemmas. Should scarce legal resources be expended on cases in which we will probably not succeed in preventing the execution? The effort requires an enormous investment of time, work, and emotional energy. For me, one important component of this decision is the impact on the inmate of a last-ditch effort: does the litigation effort which inevitably raises the inmate’s hopes that he will escape his imminent execution date, impede his ability to work through the (uncertain) fact of impending death? Does such litigation—such literally last-minute litigation—foster denial of the reality of die possibility of death?

Perhaps the most chilling questions involve what a lawyer should do if the inmate decides not to pursue further attempts to ward off the executioner. I can appreciate that a person could conclude that death is preferable to the uncertainty of death row and even to life imprisonment in a maximum-security prison (Bluestone and McGahee, 1962; Gallemore and Panton, 1972; R. Johnson, 1981; Radeletetal., 1983). Assuming that the inmate is mentally competent and that the decision is an informed one, should the attorney give effect to his client’s wishes? If so, then is the lawyer respecting the inmate’s human dignity and his right to make the most personal and intimate life choice, one of the few such choices permitted to death row inmates (K. Johnson, 1981)? Or is the lawyer simply acquiescing in the inmate’s suicide and, thus, making it easier for the state to execute others who do not want to die (Strafer, 1983; White, 1987)? How does one balance the choices and desires of one’s client with the interests of other death row inmates in resisting executions?

I am thankful that I have not yet encountered a client who did not want to fight in the courts until the end, since Florida inmates have thus far refused to be volunteers for execution. From my perspective, legal resources must be spent in all cases, even in those where there is small likelihood of even temporary success. This is so because the legal system that decides who lives and who dies operates in no small measure on the basis of chance, luck, and arbitrariness. From time to time, albeit rarely, courts do grant stays in successors. The stakes, not die odds, are what is important. Even when the stays are temporary and even when they do not result in eventual victory – a life sentence or a new trial — this sort of litigation can buy the inmate time, sometimes as little as five hours and sometimes as much as years. This may not be what lawyers usually mean when they talk of “winning.” But redefinition of die notion of winning is an important way of coping with a system that is often indifferent and increasingly hostile. To win time is to win. During that time, new evidence beneficial to the condemned person’s case may come to light. Also during that time, the condemned, like the rest of us, feel joy and sorrow, have hopes and dreams, grow and change. In short, they live their lives.

Living one’s life, even in the close confines of death row, is always much more than a legal matter. This is particularly so in the weeks and months prior to a scheduled execution date. It is essential that the human, extralegal needs of the inmates are recognized and, where necessary, advocated; often the attorneys challenging die inmate’s underlying conviction and sentence are not the best ones to fulfill this role. In Florida, death row inmates are fortunate to have a few people who assist them and their families in coping with the psychological and spiritual process of preparing for possible death. This non-legal counseling and support help turn death from an abstract principle to concrete reality, and also help the inmate take care of the unfinished business of this lifetime. This places the legal struggle in perspective. We fight not only death, but also despair. My goals are to ensure that the inmate knows that all hope is not lost — that the battle continues and that he will not be abandoned — but also that the outlook is grim and that he should be preparing himself to die.

Nevertheless, because of the nature of crisis advocacy, this perspective has only limited utility to me as a lawyer. To be a forceful advocate, one can never view the impending execution as inevitable. While a realistic appraisal of the legal situation is essential to effective lawyering, the zealous presentation of the case before the courts requires a belief in victory. The litigation at this stage is uniquely rough and tumble, with many of the trappings of judicial decorum suspended. Often, virtually all of the other actors in the system, from prosecutors to judges to courtroom personnel to prison officials, expect the execution to go forward and resent the interference by the inmate and his lawyer. Stopping that momentum requires a belief that the scheduled execution will not occur.

This belief has retarded my own process of dealing with the death of my clients. This was brought home to me forcefully in the case of Ronald Straight, who was executed in May 1986 following a round of successive litigation. I had become especially close to Mr. Straight and his mother in the last month of his life, and I strongly believed that his execution would offend the constitutional rights that protect us all. The Supreme Court ultimately denied a stay of execution (by a vote of five to four) less than five minutes before the scheduled time of execution. There was no time to assimilate the reality (of losing by only one vote) and the finality (of there being nothing left that lawyers could do to switch the one vote needed to save Ronnie Straight’s life.) Straight was being strapped into the electric chair. I will never forget the waves of helpless rage that washed over me as the clerk of the Supreme Court read me the orders denying the stay. It would have been easy-too easy-to blame the Court as an institution, the five Justices who voted to deny the stay, or the one justice who could have changed his or her mind. Instead, I found that the real target of my rage was myself: a participant in the system of legal homicide. I am a participant who advocates for the condemned, but a participant nonetheless. Was I serving to legitimize the system by helping to provide sanitized executions, executions with the aura of legalism and therefore the appearance of fairness?

As a lawyer, I am constrained by the rules of the game I have chosen to play. Although a skilled manipulator of these rules can meet with success, to be “effective,” a lawyer must understand and accept, at least tacitly, the system and its principles. On a personal level, the most frustrating principle to accept is one of the most fundamental: stare dedsis, the doctrine of precedents. In the minds of a majority of the Justices on the Supreme Court, the constitutionality of the death penalty itself is no longer a serious question. The system of capital punishment still requires fine tuning, but the fundamental issues have been resolved by the Court in favor of the constitutionality of the death penalty. The cases upholding it have been affirmed repeatedly over the past decade, indicating that capital punishment is here to stay, at least for the foreseeable future. While it is certainly untrue to say that precedents are eternal, given the present political climate and the current personnel on the Supreme Court, there is little likelihood of the Court’s redefining the death penalty as unconstitutional.

To be sure, important legal issues remain to be resolved in individual cases. Such issues, however, are different from the basic, systemic issues that once typified death penalty litigation. Prior issues revolved around such questions as whether retribution is a legitimate goal of the penal system, whether the death penalty is arbitrary, whether the imposition of capital punishment is racist, and whether capital punishment deters crime more effectively than lengthy imprisonment. This narrowing of issues from the systemic to the individual is exemplified by the present state of litigation surrounding deterrence. It is no longer viable to litigate that the evolving social scientific evidence demonstrates that the death penalty does not deter. Instead, advocacy concerns the right of an individual defendant to present social scientific evidence at his or her own trial. The goal is to save the individual defendant rather than to attack the core assumptions or constitutionality of the death penalty itself. In fact, to the extent that specific cases present issues of broader application, I often try to de-emphasize the larger questions. The question I most often dread at oral argument is, “Counsel, if we rule your way, won’t we also have to grant relief in a lot of other cases that present the same claim?”

I do not mean to suggest that there is a clear line between “systemic” defects in capital punishment and “individual” defects in specific cases. The unfairness of a particular death penalty sentence is often symptomatic of more general flaws in the death penalty system itself. There has, however, been a shift in the ways that courts and litigants understand and confront these problems. The courts are no longer interested in broad-based attacks on the death penalty. Thus, the fight is for one life at a time. The irony is the need to convince the courts that granting relief in a particular case will not “open the floodgates” to granting relief in many other cases.

The precedents that define the landscape of present litigation on the death penalty form the world within which die zealous advocate must operate. It is a world within which killing is accepted as legally permissible. Resistance to executions therefore becomes paradoxical. The system is attacked, but this attack becomes institutionalized and thus, to some extent, domesticated.

Yet the ironies inherent in the system of capital punishment are not confined to death row inmates and their advocates. For example, in 1985 the Florida legislature created and funded the Office of the Capital Collateral Representative (CCR) to represent those Florida death row inmates who did not otherwise have lawyers. The legislature did so at the behest of State Attorney General Jim Smith, who argued forcefully that giving inmates lawyers would make the system work more smoothly and would speed up executions. The legislative debates on CCR are extraordinary, as the following exchange illustrates:

Attorney General Smith: . . . [The federal courts have] made it clear they are going to exhaustively review every death case and if the people of Florida want to continue to have capital punishment, and I think they do, this is something we’re going to have to do.

Senator Crawford: . . . What you’re saying basically is if you support the death penalty [and if you think the] State has a right to utilize that in a timely manner, that we should support this legislation?

Attorney General Smith: Yes, sir.(Elvin, 1986; Florida Senate, 1985)

However, once CCR became operational and succeeded in preventing a string of executions, some legislators grumbled that the office had violated the legislative intent behind its creation. It was apparently not foreseen that the attorneys and other personnel employed by CCR would be effective advocates who could win stays of execution for their clients.

The shifting of the battleground from the broad issue to the individual case, and the increasing impatience with capital cases generally, must be understood in terms of a burgeoning death row. There are presently over two thousand men and women under sentence of death in the United States, spread over 34 states. There are nearly three hundred in Florida alone. State and federal courts in the southeastern United States, where the concentration of condemned inmates is the greatest, have in the past decade been swamped by the sheer number and complexity of the appeals and collateral proceedings that reach them. Judges, being human, may begin to tire of these cases. It is easy to become numbed by the volume. I fear that our society’s desire to make executions easier has made us forget that we are dealing with people’s lives. The taking of life becomes routine.

Given the number and the emotional power of these cases, death row attorneys have been attacked as unethical and unprofessional by opposing attorneys representing the state. What is more disturbing is that some of this almost prosecutorial rhetoric is finding its way into the utterances of judicial officers. The most common charges include the intentional thwarting of justice by raising frivolous claims and the use of all available procedures to obtain a stay. In particular, it is becoming common to hear accusations that legal papers are intentionally filed so close to the scheduled execution date that courts must grant stays simply to consider the claims raised—which usually turn out to lack merit anyway.

The American adversarial system of justice is based on the notion that lawyers on each side will use every legitimate means to win on behalf of their clients. In the words of the Code of Professional Responsibility, an attorney should represent a client zealously within die bounds of the law. More fundamentally, I do not see how an attorney could do otherwise, especially when a client’s very life is at stake. Certainly a commercial or corporate litigator trying to prevent one company from acquiring another company would be expected-and indeed professionally required-to employ all available legal procedures for the client’s benefit. Timing of actions, much criticized in death penalty defense work, is equally important in the realm of corporate acquisition practice, where the “life or death” of a company is often at stake. It seems to me that human life can be considered no less valuable. Those who criticize death penalty lawyers for using what they label “dilatory tactics” would see the issue quite differently if the case involved their client or their loved one.

Human life cannot be assigned a value, because it can never be replaced. I believe that the criminal justice system decides life and death on die basis of chance, racism, and financial resources and therefore has no business deciding who lives and who dies. I believe that the death penalty is an anathema to civilization. I believe that basic morality negates any justification of homicide, whether institutionalized or not. And if I cannot and do not say these things in casual conversation, it is because they are not casual.

Michael Mello was an assistant professor at Vermont Law School; he died in 2008. His research interests focused on capital punishment. At the time he drafted his contribution to this collection, Mr. Mello was an attorney with the Office of the Capital Collateral Representative in Tallahassee, Florida, where his legal practice consisted solely of representing condemned inmates on Florida’s death row.

This reading is from The Class of Nonviolence, prepared by Colman McCarthy of the Center for Teaching Peace, 4501 Van Ness Street, NW, Washington, D.C. 20016 202.537.1372.